…on same grounds as Guyana’s AG seeks to have APNU/AFC petition thrown out
The Caribbean Court of Justice (CCJ) has dismissed an application for special leave to appeal against the decision of the Court of Appeal of the Eastern Caribbean Supreme Court in relation to 10 election petitions which challenged the results of the last general elections in Dominica.
Importantly, the grounds on which the regional court dismissed the case are similar to what Attorney General Anil Nandlall, SC, and other lawyers have advanced before the court in their bid to have an election petition challenging the results of Guyana’s 2020 national elections, filed by petitioners Monica Thomas and Brennan Nurse on behalf of the A Partnership for National Unity/Alliance for Change (APNU/AFC), thrown out.
The Trinidad-based court will open arguments in this case from Guyana on July 19.
Dominica’s case
In the case of Cuffy and others v Skerrit and others, the regional court, on Tuesday, agreed that the petitioners who challenged the results of the last national election in Dominica by way of election petitions had no right to appeal the decision of the High Court Judge to strike out their petitions.
After Dominica’s general elections on December 6, 2019, the petitioners filed 10 election petitions claiming that the elections were conducted in a manner contrary to established electoral laws and regulations. The respondents applied to strike out the petitions.
In so doing, they contended that the petitions lacked sufficient details. The trial Judge agreed with the respondents and struck out the petitions. The petitioners then sought to appeal the decision of the trial Judge. The respondents raised the issue that the Court of Appeal had no authority to hear the appeal. They stated that Subsections (ss) 40(6) and (7) of the Constitution of Dominica only permit appeals against a final decision in law. They contended that the decision of the trial Judge was not final, but rather what the law refers to as “interlocutory”. This, they argued, means that the Judge dismissed the petitions at an intermediate stage and as such, did not determine the merits of the petitions. Consequently, they submitted there was no right to appeal.
The Court of Appeal agreed with the respondents and declined to hear the appeal. The petitioners applied to the CCJ for special leave to appeal the Court of Appeal’s decision.
The CCJ, in a judgment authored by its President Justice Adrian Saunders, held that in order to determine what is a final decision in ss 40(6) and (7), one must look at the meaning, aim, history, rationale, and context of those constitutional sub-sections. The CCJ noted the numerous Commonwealth Caribbean cases which stated that election petitions must be determined promptly so that the legitimacy of a government does not remain in question.
The CCJ found that the trial Judge did not determine the merits of the petitions. In other words, he did not reach the stage where he would have determined the question of whether a candidate was validly elected or not. Instead, the CCJ noted that the Judge struck out the petitions on procedural grounds. Accordingly, it held that the decision of the trial Judge was not final, but interlocutory. The CCJ further noted, however, that the Constitution guarantees every person in Dominica the right to a fair hearing within a reasonable time by an independent and impartial tribunal. The apex court emphasised that a very high value is placed on that right.
According to the CCJ, if a petitioner complains at a stage before the trial of their petition (an interlocutory stage), that their right to a fair hearing was violated, then the Court of Appeal should assume the authority to hear that complaint.
Nevertheless, the CCJ took the view that in this case, no issue arose as to whether the petitioners had not received a fair hearing. Consequently, the CCJ refused the application for special leave and thus upheld the orders of the Court of Appeal. No order as to costs was made, since the CCJ considered that efforts by the citizenry, in good faith, to call attention to perceived deficiencies in the electoral process should not be discouraged.
Guyana’s case
At the CCJ, Nandlall and Vice President Dr Bharrat Jagdeo are challenging the 2 to 1 majority ruling of the Court of Appeal of Guyana in which it took jurisdiction to hear an appeal against acting Chief Justice Roxane George’s decision to dismiss election petition #99 for improper service/non-service on the second-named respondent, former President David Granger.
The petition filed in accordance with Article 163 of the Constitution of Guyana, which was struck out on January 18, 2021, challenged the results of the March 2, 2020 national elections with the intent of having Granger declared the duly-elected President.
Acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory had ruled that to oust the Appeal Court from hearing the appeal against the Chief Justice’s ruling would defeat the purpose of Article 163 of the Constitution.
The acting Chancellor had noted that although she had considered all the precedents relied on by Nandlall, they failed to invalidate the Court of Appeal’s jurisdiction to hear the appeal.
In a dissenting judgement, however, Justice of Appeal Rishi Persaud had said that considering the unambiguous language of that constitutional provision, as well as the fact that the Chief Justice (ag)
did not dismiss the petition on its merits, but rather because of procedural errors, a right of appeal did not lie to the Court of Appeal.
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition. Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday.
But in the affidavit of service, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.
During the appeal court hearing, Nandlall and Trinidadian Senior Counsel Douglas Mendes, who are representing Dr Jagdeo – a respondent in the petition – had argued that Article 163 of the Constitution bestows upon the High Court a peculiar jurisdiction to hear such matters.
They contended that there is no statutory or constitutional jurisdiction given to the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1).
According to the two Senior Counsel, Article 163 constitutes the complete code of how election petitions are to be determined, lists the types of issues that are to be raised by an election petition, and also limits the grounds upon which appeals flow from the determination of those issues.
“Article 163 limits appeals to be filed from decisions coming from the High Court that are commenced by an election petition only to the determination of the questions identified in the Article,” Nandlall had submitted.
“The learned Chief Justice in her ruling struck out the petition on the ground that there was non-service. In her written decision, Her Honour stated that service within the time prescribed is a condition precedent to the hearing and determination of an election petition,” the Attorney General had argued.
He added, “The [Chief Justice] never determined the questions which the petition raised to be determined which are the questions raised in Article 163 (1) from which Article 163 (3) says an appeal lies to the Court of Appeal upon the determination of those questions or orders consequential to the determination of those questions.”
As such, Nandlall argued that with those questions having not been determined, there is no right of appeal in any other statute nor the Constitution upon which the petitioners can hinge their appeal. The Attorney General has advanced these very grounds before the CCJ.
But Roysdale Forde, SC, and John Jeremie, SC, – who appear for the petitioners – argued that the Court of Appeal does have jurisdiction to entertain the matter under Article 123 of the Constitution and the Court of Appeal Act.
Jeremie had previously submitted that his clients had properly invoked the jurisdiction of the Court of Appeal to where an “automatic right” of appeal lay as the High Court had determined and made its pronouncement on the petition.
The petitioners contend that the elections were unlawfully conducted and/or that the results (if lawfully conducted) were affected or might have been affected by unlawful acts or omissions. They are also asking the court to declare that President Dr Irfaan Ali is illegally holding office.
The results of a national recount of all ballots cast showed that the People’s Progressive Party/Civic (PPP/C) won the general elections with 233,336 votes over the coalition’s 217,920 votes. (G1)
